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### THE .~TTOKBTEY GESERAZ. OF %%XAS

Honorable John Lawhon Opinion No. M-297 County Attorney Denton County Re: Mayacounty attorney serve Denton, Texas as acollege professor at a state university under the provisions of Sections 

### 33 and 40of Article XVI, Texas .~ Constitution, and related Dear Mr. Lawhon: statutes.

Youhave recently requested an opinion from this office regarding the above stated matter, wequote from your letter as follows: "QUESTION

"Can the County Attorney of Denton County serve as professor for one class at a state university? "BRIEF ONTHELAW "Anew case, Tllley v. Rogers, 405 S.W.2d 220, 224 (Tex.CIv.App. 

### 1966, wr.ref.,n.r.e.), directly answers this question. There is no later case In flolnt. Art. 

### 1.6,

Sec. The Tilley case construes 0of the Texas Constitution, which article restricts aperson from serving In more than one civil office of emolument. "The office of County Attorney Is such a civil office; 'however, aprofessorship Is not an office. Ateacher or college professor is not an office within the meaning of the constltutlonal provlslons of Art. lb, S Constitution of the State of Texa? .40of the H e Is an employee and the prohibition of the constitu-

-1433-Honorable John Lawhon, page 2 (M-297)

tional provision of Art. 

### 16, Sec. 40 is in s%-F*’ Tl1 R 405 s

224 (~ex’“cI:::Ap~pef~~6~“~~“XS.,n.

“CONCLUSION “The answer to this question Is that such County Attorney can legally serve a8profeaeor for a class at a state university.” Section 40of Article XVI, Vernon’s Texas Constltution, la quoted in part a8follows:

“Noperson shall hold or exercise, at the same time, more than one civil office of emolument.

. . .‘I (ephasisam Wehave reviewed the case of Tllley v. S.W.2d 220 (Tex.CIv.App. 1966, err.reS.n.r.e.), your analysis of that case. Youare also referred to Attorney General Opinion V-689 (1948) which makes It clear that it has long been the position of the Attorney Qeneral that a college professor does not hold “a civil office of emolument.” The court in the Tllley case, suora, was concerned on1 with the holding of more than one !‘oSSIce” undersection -3 0 of Article XVI.

However, your question also necessitates an analysis of Section 33 of Article XVI, Vernon’s Texas Constitution, which Is quoted, In part, as Scillowa:

“The accounting officers of this State shall neither draw nor pay awarrant upon the Treasury in favor of any person for salary or compensation as agent, officer or appointee, whoholds at the same time any other office or position OShonor, trust, or profit under ‘this Statel except as prescribed in this Constltutlbn.

. . .Without question, acounty ‘attorney holds an “office .of honor, trust or profit under this State.” Article 329

Vernon’s Civil Statutes; Attorney Ueneral Opinion No.

-1,,434-Honorable John Lawhon, page 3 (M-297)

Likewise, this office has held manytimes previously that a college professor of a state college holds aposition of honor, trust, or profit under this State, In Attorney General Opinions Nos. C-527 (1965)and c-528 (1965),itwas held that there wasno material legal distinction between "office of honor or trust" or "position of honor or trust." However, there Is amaterial distinction between "office of profit" and "position of profit." While the former term means that the holder exercises sovereign governmental Sunctlons, the latter term differs in that Its duties are not necessarily so characterized and embraces both officers and employees. Ateacher holds a "position" ofprofit. and Phrases 53, 55, "Position", 33 words and 1968Pocket Part, pp g-11, and cases there cited. See Attorney General Opinion V-689 (1948), and the many prior opinions cited therein, that aschool teacher falls wlthln the prohibited term, "position of honor, trust, or profit." Therefore, acounty attorney whoIs also teaching at a state supported college would be holding two positions OShonor, trust or profit and thus 1s subject to the constltutlonal provisions of Section 33, Article XVI.

Consequently, the State Comptroller would be prohibited In paying the salary or compensation of an Individual who Is presently acounty attorney and also aprofessor at a state college or university. However, the County Attorney Is not prohibited from serving as aprofessor In the state college without compensation, and he may also draw compensation out of funds, the sources of which are not from the State Treasury reaulrlna the accountlna officers of this Stat'e to draw or-pa -awarFant See Attorney General Opinion Numbers V-689 (I&) and also-see C-547 (1965).

The people, during 1967, saw fit to amend Section 33 of Article XVIso as to provide that anon-elective state officer or employee may hold other positions of honor, trust or profit under this State or the United States under certain specified conditions, but elected officers or position holders are still subject to the prohibitions discussed herein. See Attorney General Opinion No. M-193 (1968).

-1435 -Honorable John Lawhon, page 4(M-297)

SUMMARY Acollege professor at a state university Is not a civil office of emolument under Section 40of Article XVI, Constitution of Texas. v. Rogers, 405 S.W.2d 220 (Tex.CIv.App. 19 reS.n.r.e.) and the County Attorney may serve as a college professor of a state college, but without compensation from the State Treasury. The State Comptroller isprohibited by Section 33 of Article XVI, Vernon's Texas Constitution, from paying the salary or compensation of acollege professor whoIs also acounty attorney. truly yours,

Prepared by James C. McCoy Assistant Attorney General APPROVED: OPINIONCOMMITTEE Hawthorne Phillips, Chairman Kerns Taylor, Co-Chairman Bill Corbusler Pat Bailey Arthur Sandlln Robert Flowers A. J. CARUBBI,JR. Executive Assistant

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